Law
vision
In
search of a permanent attorney system for Bangladesh
Sheikh
Hafizur Rahman Karzon
The
prime concern of a government is to ensure common people's
access to justice and good governance. Rule of law, needless
to say, is a pre-condition of good governance, which cannot
be ensured without a good legal system. In Bangladesh
delay in the delivery of civil justice destroys confidence
of the people. Administration of criminal justice is surrounded
by many drawbacks. Among them police investigation and
state attorney service have recently caught sight of the
incumbents.
System
of state attorneys
Attorney system is constituted of lawyers appointed and
enjoined to look after the interest of the state. Without
an efficient team of attorneys, government is not properly
represented, particularly in criminal cases public interest
remains uncared. In Bangladesh Government Pleaders (GP)
are appointed to preserve the interest of the government
in civil cases. They are assisted by Additional and Assistants
GPs. The Public Prosecutors (PP) are appointed to represent
the government in criminal cases. They are assisted by
Additional and Assistant PPs. Besides them, the Attorney
General work with Additional and Assistant Attorney Generals
to represent the government in the Supreme Court of Bangladesh.
Administration
of criminal justice, police investigation and system of
state attorneys
Police investigates a criminal case and it ends with either
a charge-sheet (a sheet containing the names who are involved
in the commission of a crime), or a final report ( a report
saying that the alleged crime has not committed and the
individuals accused in the F.I.R. are not guilty.) The
Police accomplish almost all the initial activities of
a criminal case. Basing on this foundation Public Prosecutors
cook up a case in a systematic way, which will bring the
real criminals within the purview of the penal provisions.
When preparing a case the Public Prosecutors take into
account the F.I.R., Charge-sheet, Post-mortem Report,
Inquest Report, Confessional statements and 'alamats'
collected from the place of occurrence. They, with the
assistance of their subordinates, take the role of prosecution
on behalf of the government.
Countries
like USA, UK, Canada, Australia, Japan etc. have very
well-organised attorney system. After accomplishing all
the initial activities, police submit their findings and
documents to the state attorneys. They scrutinise the
criminal cases and determine the merit. Criminal cases
having insufficient merit are dropped. Through this process
of scrutiny state attorneys reject forty to fifty per
cent of criminal cases submitted to them. It saves the
time of the court and keeps concerned individuals free
from cumbersome situation. The state attorneys bring to
the court those cases, which have sufficient merit and
in ninety eighty per cent cases they become successful.
In
Bangladesh the police is corrupt and their investigation
is faulty. Most of the criminal cases do not get strong
foundation because of the weak investigation. The attorney
system in Bangladesh is also inefficient and corrupt.
The state attorneys (PPs, GPs, and their subordinates)
are appointed on political consideration. The party in
power appoints those lawyers as state attorneys, who are
affiliated with their party. They are changed with the
change of the government. Because of the transitory nature
of attorney service they are inefficient and not committed
to preserve the interest of the community.
The
attorneys are state lawyers as well as private lawyers
as they have double capacity. They get scanty amount in
government cases and cannot give proper attention. As
a result government remains least-represented or non-represented
in civil cases and loses huge properties, which can be
translated into crores of money. In criminal cases accused
having power and money influence police and state attorneys.
The situation has worsened to such an extent that one
Public Prosecutor brought a criminal (accused in a criminal
case) in his car and made all the arrangements for his
bail. Because of this deterioration, the influential accused,
white-collar criminals, and god fathers remain free. After
committing crimes they are take the advantage of faulty
police investigation and weak state attorney system. As
a result, they are released on bail or come out of the
prison. They intimidate the family members of the victim,
influence different agencies of criminal justice system,
and destroy or fabricate the evidence. Ultimately the
criminal cases become a farce.
Criminal
justice administration in Bangladesh does not have any
mechanism to compromise the cases between the parties.
At least twenty to thirty per cent cases could have been
minimised through this mechanism. Moreover, we lack a
system of scrutiny under which police could submit their
cases to the state attorneys, they would then scrutinise
and drop weak and unnecessary cases.
Possible
way out
Civil and criminal justice administration of any country
is very important as it is the last resort of the common
people. State must have mechanism for alternative dispute
resolution as well as dispute resolution. The disputes
may be resolved by amicable settlement without involving
a court of law. That is ideal condition for properly civilised
individuals ensuring a win-win situation. Option should
be open for unsuccessful parties to go to a court of law
for resolving the disputes.
Procrastination
of the cases is the main problem of the administration
of civil justice. Overburdened courts, taking time by
the advocates, corruption of the lower echelon of the
civil courts, difficulty to preserve the documents-- all
these create a fibre of inextricable knot.
Various
types of problems, as mentioned earlier, have impinged
on the criminal justice administration of Bangladesh.
When any crime is committed, sense of 'pity and probity'
of the common people is offended. Not only the victims,
but the state becomes aggrieved due to the commission
of offence. The law casts heavy duty on the state to bring
the real culprits before a court of law. On behalf of
the state, the police, state attorneys, and criminal court
act to outweigh the mischief done by the crime. Investigation
of police constructs the foundation on the basis of which
the state attorneys arrange a case. Criminal Courts examine
the prosecution and defence witnesses, verify the documents
to determine the veracity of the case and identify the
criminals. Finally the courts pronounce their verdict
to penalise the delinquents, and try to minimise the grievances
unleashed by the commission of the offence.
The
police are busy with maintaining law and order. For that
reason they cannot give much attention to investigation
of criminal cases. Government may introduce a separate
department of police for investigation. Under the existing
dispensation of police an officer is enjoined to accomplish
many activities including investigation. As a result he
cannot concentrate on investigation. This separate department
of police must be introduced with a check and balance
system so that corruption cannot infiltrate into it.
After
thorough investigation the police will submit the criminal
cases to the state attorneys. They will examine and determine
the merit of the cases. First, they will drop those cases,
which do not have sufficient merit. Secondly, in possible
cases they will try to settle the cases amicably with
the assistance of both the parties. The state attorneys,
then, cock up the cases having merit and bring those cases
before the courts.
The
existing state attorneys cannot dispose of this task properly.
It requires a new set of committed and efficient lawyers.
Present government is considering to introduce a permanent
attorney system, which is prevalent in developed countries.
Under the new system the state attorneys will be recruited
through Public Service Commission. The law graduates will
have to attend competitive examination [for example examination
for BCS (state attorney) cadre] and the successful candidates
will be appointed as state attorneys. This efficient team
of state attorneys will preserve the public interest far
better than the existing set-up.
The
state attorneys will be stratified into two categories:
first, the Supreme Court Attorneys and second, the District
Attorneys. Attorney General, as it is now, will be the
chief of the attorneys of the Supreme Court and be assisted
by Additional, Deputy and Assistant Attorney Generals.
In districts, the District Attorney General will be the
chief of the District Attoneys. S/he will work with the
assistance of Additional, Joint and Assistant District
Attorneys. There will be an office of Directorate General
of District Attorneys in Dhaka under the authority of
the Law Ministry. It will be the headquarter of the District
Attorney offices. The office of the Attorney General of
the Supreme Court will remain as a constitutional office
as it is now. The Assistant District Attorneys and the
Assistant Attorney Generals of the Supreme Court will
be recruited by the Public Service Commission.
Criminal
justice need to be addressed as a whole
The incumbents are considering to bring some changes into
the existing criminal justice administration. They want
to make it speedy and dynamic. Their intention and initiative
are praiseworthy. But they ought to ponder the administration
of criminal justice as a whole, not in piecemeal. They
consider to introduce separate department of police for
investigation and a permanent state attorney service.
But these initiatives are not enough. They may consign
the Law Commission to prepare new penal laws and introduce
inquisitorial system in the place of accusatorial system.
The British concept of adversary system is very old. We
have to change our mind-set and legal culture. We also
need to introduce alternative dispute resolution. After
recasting the whole system, we may fairly expect that
criminal justice will be administered to keep a balance
between the right of the accused and the interest of the
innocent as well as the interest of the whole community.
Concluding
remarks
The penal policy of Bangladesh is a mix of retributive,
deterrent, and preventive theories of punishment. We lag
far behind the civilised standard. Before making any change
into the criminal justice system, we ought to revise our
present penal policy. We should incorporate progressive
ideas into the penal policy to suit with the changing
demands of twenty first century.
The
author is a Lecturer, Department of Law, University of
Dhaka.
